Category Archives: Assisted Living Facility

Second ALF Workgroup Meeting Nets Few Recommendations

The second meeting for the Governor’s Assisted Living Workgroup, held last week on the University of South Florida’s campus in Tampa, fell short of producing any substantive recommendations that the entire panel would back. While representatives of various agencies gave presentations with their recommendations to improve ALF oversight, ALF operators were quick to point out problems with those recommendations.

In one example, Kathryn Hyer, an associate professor and director at USF’s School of Aging Studies, strongly recommended that ALF operators be required to have a bachelor’s degree in a health care-related field. Several members on the ALF panel stated that monies received for the care of ALF residents would never cover the cost of hiring an administrator with such education. Currently, Medicaid only reimburses assisted living facilities up to $32.20 per day for services provided to waiver residents.

Molly McKinstry, Deputy Secretary for Health Quality Assurance at the Agency for Health Care Administration (AHCA), presented an overview of the state and local government’s role and responsibilities in regulating ALFs. Ms. McKinstry noted that Florida has experienced a 30-percent increase in the number of ALFs over the last several years, with more than half of all facilities having six or fewer beds. AHCA’s recommendations for improving ALF oversight included a revision of the complaint survey process to reflect a model used by Wisconsin, and to incorporate the following:

• An enhanced focus on the residents;
• Concentration on resident and family interviews, observations and record review;
• Improved consistency of surveys;
• Abbreviated surveys for high-performing ALFs (i.e., no history of complaints, consistent ownership, consistently good surveys).

The meeting ended with workgroup’s chairman, Larry Polivka, requesting panel members to read over the Florida Senate Committee on Health Regulation’s report on ALF oversight and warned members to be ready to discuss them at the last meeting, to be held in Miami in early November.

The Senate Committee report identified problems with AHCA’s survey and inspection process in that AHCA is not generating enough revenue from fees and fines to adequately fund the necessary number of ALF inspections needed in light of the increases in facilities. The report recommended more abbreviated inspections for facilities in compliance with the law, while requiring more frequent and extensive inspections of those ALFs that have recurring deficiencies.

The Senate report also recommended increased training and qualifications of Core Training Providers, which train ALF administrators. The report raises the possibility of returning the responsibility of core training back to the Florida Department of Elder Affairs (DOEA), which was the agency with primary responsibility before the role was privatized in 2003 by the Florida Legislature. Other related suggestions included expanding the core training curriculum, increasing administrator qualifications to require a 2-4 year degree with coursework in gerontology or health care, increasing staff training and examinations, increasing staffing ratios at ALFs, and requiring special elopement training for staff members.

To ensure that AHCA consistently enforces penalties on poor-performing ALFs, the Senate report recommends legislation that removes the agency’s discretion to reduce administrative fines, moratoriums and other penalties when certain deficiencies or violations are discovered. Additionally, it was noted that consumers would benefit from an easy-to-use rating system (similar to Nursing Home Compare) that could be coordinated by the Ombudsman’s Office to help families make informed decisions about choosing an ALF.

Finally, the Senate report recommends streamlining agency oversight over those areas where more than one state agency performs a function in the regulatory process of ALFs.

While a site for the next meeting in Miami has not yet been announced, the panel is considering a two-day meeting on November 7-8, 2011.

If you have any questions regarding the workgroup or issues relating to ALF operation, regulation or agency action taken against your ALF, please feel free to contact one of the attorneys at Smith & Associates.

Governor’s Workgroup Begins Review of Assisted Living Issues

The Agency for Health Care Administration (AHCA) hosted the first of three meetings of Governor Scott’s Assisted Living Workgroup on Monday. The workgroup – consisting of 14 appointed members representing the Florida Legislature, industry leaders, assisted living facility (ALF) operators and resident advocates – listened and directed questions to a dozen speakers who voiced their concerns about the current problems facing assisted living facilities and those who reside in them.

Industry representatives, from the Florida Assisted Living Association and Florida Association of Homes and Services for the Aging, voiced the need for more streamlined and better defined regulation so that ALF and nursing facility operators know what is expected of them. Alberta Granger, from FALA, noted that facility surveys “are all over the place.” Problems the ALFs must contend with include various and overlapping statutory provisions which confuse ALF operators and causes problems with compliance, inconsistent facility surveys, and poorly trained surveyors. Adding to this confusion, according to the speakers, is the multitude of agencies involved in oversight. Not only does AHCA regulate ALF facilities and operators, but also the Department of Children and Families, the Department of Health, local health and fire departments, Florida Department of Elder Affairs, and others.

Consumer advocacy representatives from organizations such as the Florida Peer Network and Florida Long Term Care Ombudsman spoke in favor of a stronger “bill of rights” for ALF residents and pushed for more quality of life measures to be mandated in facilities. State Senator Ronda Storms, R-Brandon, echoed these sentiments and questioned whether the four ALF operators on the panel, as well as other industry representatives, supported such measures in the past.

There seemed to be a consensus among all participants that more mental health services need to be delivered to ALF residents and that ALF operators who are proven to be “bad actors” – references to the Miami Herald’s six-part series “Neglected to Death” were repeatedly provided as examples – should face more serious consequences. According to those newspaper articles, AHCA did not do enough to punish certain ALFs which were allegedly caught abusing or neglecting its residents.

However, one common misconception about ALFs is they are supposed to provide health care beyond basic residential and custodial services. ALFs provide housing and some support services, but do not provide round-the-clock nursing supervision. The state’s moratorium on skilled nursing facility construction may be forcing many elderly residents into ALFs when, in actuality, they need a higher level of skilled nursing services. In reality, ALFs provide an important and valuable service to the state’s elderly residents and the vast majority of them work to stay in compliance with agency regulations.

Larry Polivka, the panel’s chairman, laid out objectives for the workgroup’s next two meetings, which includes evaluating the current legislation that regulates ALFs in Florida and make recommendations to the Governor regarding regulation of ALFS, consumer information and choice, and long-term care services and access to adequate care.
As to regulatory issues, the workforce will be considering the following:

• Enhanced regulatory oversight of “troubled” facilities and a streamlined regulatory process for facilities with a favorable regulatory history;

• Roles of various oversight and regulatory agencies, collaboration to improve oversight and protections, and use of findings by another regulatory agency in agency actions;

• Enforcement action, such as mandatory sanctions, revocation or denial, and related due process matters;

• Licensure structure, including “types” of licensure by size, specialty and residents served;

• Qualifications and training requirements for assisted living administrators, management , staff and core trainers;

• Limited mental health services in ALFs, including specialty license qualification, staff preparation, community support, facility size, resident needs and co-mingling of diverse resident populations;

• Frequency of inspection and monitoring ALFs and the “resource impact” of such changes;

• Evaluation of ALF fee structure as it relates to paying the cost of ALF regulation.

The next workgroup meeting will be held on August 23 at the University of South Florida in Tampa, Florida. Attendees are invited to listen, but may not participate in the workgroup discussions. The workgroup will have a final meeting in September before making its recommendations to the Governor’s office.

If you have any questions regarding the workgroup or issues relating to ALF operation, regulation or agency action taken against your ALF, one of the attorneys at Smith & Associates will be happy to help you.

Assisted Living Facilities: Asserting a Legal Defense in Response to AHCA Enforcement Action

Recent news reports show increased legal sanctions are being imposed by the Agency for Health Care Administration (AHCA) against operators of Assisted Living Facilities (ALFs) for alleged violations of licensure standards. The sanctions available in the AHCA enforcement arsenal are many and include imposition of a moratorium on admissions, imposition of fines and penalties, or the suspension or revocation of the ALF’s license to operate. Recent developments suggest AHCA is presently engaged in an orchestrated “crackdown” on ALF operators, leading some to ask: What are my legal rights and responsibilities? What should I do if my facility becomes the subject of an AHCA investigation or enforcement action?

Chapter 429, Florida Statutes, includes the basic laws governing operations of an ALF. The rules governing licensure and operations are contained in Chapter 59A-5, Florida Administrative Code. These Rules address such areas as licensure requirements, resident care standards, staffing standards, physical plant standards, fiscal standards, and detailed Agency administrative enforcement mechanisms including inspections, survey deficiencies, and sanctions. Sections 408.811, and 429.34, Florida Statutes, provide the authority for AHCA and other state agencies to make unannounced inspections of an ALF. If faced with an inspection, an ALF operator has no legal right to refuse to allow the inspectors access to the facility. However, there is a right to require that proper identification be presented by AHCA or other agency employees. An ALF operator may also request that an Administrator or other designated representative accompany the inspectors while at the facility. It is advisable that the ALF operator immediately consult with legal counsel if an unannounced AHCA inspection is made. During an exit interview, the AHCA representatives should explain their findings, including any alleged deficiencies that were found.

Subsequent to an inspection, AHCA will provide the ALF Administrator with a survey report that provides a detailed written explanation of the findings made during an inspection. The ALF will be given 10 days in which to present a Plan of Correction. Although seldom asserted, an ALF operator may assert a legal right to challenge a survey report and petition for a formal administrative hearing pursuant to Section 120.569 and 120.57(1), Florida Statutes, if the provider believes that there were in fact no deficiencies that should result in a Plan of Correction being submitted. However, in most instances, the results of a licensure or complaint survey can be resolved through submission and implementation of a Plan of Correction.

In the event of alleged severe deficiencies which AHCA claims threaten the health, safety or welfare of an ALF resident, AHCA can impose an immediate moratorium on admissions, or an emergency order of license suspension pursuant to Section 408.814, Florida Statutes. In order to support such emergency action, AHCA is required by Section 120.60(6), Florida Statutes, to make specific findings that document the existence of the emergency situation, and may take only such action as is required to address the emergency. Further, an ALF operator faced with an emergency moratorium, or suspension order, or any other effort to suspend or revoke a license is entitled to file a Petition for Formal Administrative Hearing to challenge the validity of AHCA’s action or proposed action on the license. Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings. Such hearings are an opportunity to prove that the true facts do not support a moratorium, suspension or revocation of the ALF license.

In addition to taking direct action against an ALF operator’s license, AHCA is also empowered to seek imposition of civil penalties for alleged violation of licensure rules and standards. Pursuant to Section 429.19, Florida Statutes, according to the “classification” assigned to the alleged violation, as follows:

Class I violations: present an imminent danger to clients (residents) or a substantial probability that death or serious physical or emotional harm would result. These must be corrected within 24 hours. Imposition of a fine is mandatory in an amount of $5,000-$10,000 per violation, even if the violation is corrected.

Class II violations: directly threaten the physical or emotional health, safety or security of clients (other than Class I). Fine in the amount of $1,000-$5,000 per violation, even if the violation is corrected.

Class III violations: indirectly or potentially threaten the physical or emotional health, safety or security of clients (other than Class I or Class II). Fine in the amount of $500-$1,000 per violation.

Class IV violations: pertain to reports, forms or documents that do not have the potential of negatively affecting clients (purely paperwork type violations). Fine in the amount of $100-$200 per violation.

In order to assess a penalty against an ALF operator, AHCA is required to file an Administrative Complaint. An ALF operator has the right to demand a formal hearing to challenge the facts, and to challenge the amount or appropriateness of the fines being imposed. While it is clear that fines for Class I and Class II violations are mandatory, even when the violation is corrected, it is less clear whether a fine should be imposed when a Class III or Class IV violation is timely corrected by the ALF operator. Language in Section 408.813 (AHCA’s “Core Licensure Act”) suggests that no fine shall be imposed when such minor violations are corrected. However, there is some language in the statute that creates ambiguity, and the specific fine amounts for violation of ALF licensure standards are also stated in mandatory language in Chapter 429, Florida Statutes. Section 408.832, Florida Statutes, provides that when the AHCA Core Licensing Act conflicts with the specific facility governing statutes (such as the ALF statute) that the Core Licensure Act should prevail. Applying that principle, then no fines should be imposed for minor Class III and IV violations when they are timely corrected. AHCA takes a contrary view, and this legal issue will likely need to be resolved through legal challenges if an operator feels that a fine is not appropriate.

Undoubtedly the best course of action for any ALF operator is to develop and implement a strong staff education and compliance program. This can be done with assistance of a qualified health care consulting firm, or health care attorneys. An ounce of prevention in this respect will be well worth avoiding the costs of a bad survey or inspection by AHCA.

However, even with a good education and compliance program in place, AHCA may still seek to suspend or revoke a license, or impose a moratorium on admissions or levy substantial fines. The ALF Operator in such situations may assert the legal right to contest and defend against such actions by retaining qualified legal counsel and filing a Petition for Formal Administrative Hearing. Further, for small operators, Florida’s Equal Access to Justice Act, Section 57.111, Florida Statutes, allows for recovery of attorneys’ fees and costs in an amount of up to $50,000 for a “prevailing small business party.” Thus, an ALF operator is not without legal rights when AHCA takes action. To the contrary, ALF operators are entitled to basic due process, and can assert the right to require that the State prove its case in an administrative hearing process.

As always, please refer specific questions regarding ALFs, and their role under the new federal health care reform, to any of our attorneys at Smith & Associates.